)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on June 20, 1996, in Tavernier, Florida, before Patricia Hart Malono, a duly designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: William F. Stacey, Esquire
Department of Health and Rehabilitative Services
401 Northwest Second Avenue Miami, Florida 33128
For Respondent: Carlos and Susan Del Valle, pro se
154 Sebring Drive Tavernier, Florida 32070
STATEMENT OF THE ISSUES
Whether the respondents’ foster home license should be renewed.
PRELIMINARY STATEMENT
In a Notice to Deny Foster Care License Renewal (“Denial Notice”) dated March 7, 1996, the Department of Health and Rehabilitative Services (“Department”) notified Carlos and Susan Del Valle that their foster home license
would not be renewed after it expired February 26, 1996. The Denial Notice identified three reasons for the proposed action. First, the Department alleged that Mr. and Mrs. Del Valle had violated the terms of the Agreement to Provide Substitute Care for Dependent Children (“Substitute Care Agreement”) by providing care in their home for a non- dependent child without the Department’s approval. Second, the Department alleged that Mr. Del Valle violated the terms of the Substitute Care Agreement when he interfered with law enforcement in an incident involving a juvenile, used his status as a foster parent to authorize his interference, and failed to report the incident to the Department as required by the Substitute Care Agreement. The Department also alleged that Mr. Del Valle violated the terms of the Substitute Care Agreement when he failed to report that he was the subject of an investigation by the Sheriff’s Department involving an allegation that he spanked a child. Third, the Department alleged in the Denial Notice that Mrs. Del Valle had expressed their desire to have as little contact with the Department’s staff as possible in a letter sent to the Department regarding a Christmas charity project, thereby indicating that they were unwilling to work in partnership with the Department.
Mr. and Mrs. Del Valle timely filed a Request for a
Formal Hearing, and the request was forwarded to the Division of Administrative Hearings for the assignment of an
administrative law judge. By notice dated May 3, 1996, the case was scheduled for a final hearing on June 20, 1996.
The transcript of the hearing was filed with the Division on October 17, 1996, and both the Department and Mr. and Mrs. Del Valle timely submitted proposed findings of fact and conclusions of law, which have been duly considered.
FINDINGS OF FACT
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
The Department of Children and Families (formerly the Department of Health and Rehabilitative Services) is the state agency responsible for the regulation and licensing of family foster homes pursuant to section 409.175 (Florida Statutes (1995).
On March 1, 1995, the Department issued a Certificate of License, number MCO395-001-2, to Carlos and Susan Del Valle to operate a foster home with a maximum capacity of two children of either sex between the ages of 6 and 18 years of age. This license expired February 28, 1996. The Del Valles had maintained a foster home license in Monroe County since 1991.
On February 7, 1995, Mr. and Mrs. Del Valle signed the Department’s Agreement to Provide Substitute Care for Dependent Children. This document must be signed by foster
parents each year as part of the relicensing procedure and each time a child is placed in the home.
In its Denial Notice, the Department alleged the following as the first reason for its decision not to renew the Del Valles’s foster home license:
Agreement to Provide Substitute Care for Dependent Children (attached), Items 9 and 11. At the time of relicensing last year, it was brought to the department’s attention that you were providing care for a non-dependent child. This was discussed extensively with you during the relicensing visit at you home on February 7, 1995. You were informed at that time that caring for this child was in violation of your agreement with the department. Subsequently, it was brought to the attention of the department that this same child was ordered into Home Detention in your home on September 19, 1995, as a result of a juvenile offense. The child’s placement in your home was in no way related to your status as foster parents. Again, providing care for this child is in violation of your agreement with the department.
In January, 1995, Mr. and Mrs. Del Valle took a child into their home who was not placed there by the Department and who lived there without the Department’s approval.
C. P., a boy in his early teens, was living in the Del Valle home on February 7, 1995, when Helen Sample, a children and family counselor supervisor with the Department, made a home visit to conduct the annual interview that is a part of the Department’s procedure for renewal of a foster home license.
At this visit, Ms. Sample told Mr. and Mrs. Del Valle
that, because their home was a licensed foster home, they could not care for a child in their home who was not placed there or approved by the Department. Ms. Sample and Mr. and Mrs. Del Valle discussed C. P.’s family situation and the various facilities where he could be placed until his family situation improved and he could resume living at home.
C. P.’s family began counseling shortly afterward, and he moved back into his family’s home several weeks after Ms. Sample’s home visit.
The Del Valle home was relicensed as a foster home, effective March 1, 1995, however no foster children were placed in the home after March 6, 1995.
In the late summer of 1995, C. P. got into trouble with the authorities, and he returned to live in the Del Valle home in September, 1995.
A hearing involving C. P. was held on November 14, 1995, before a judge of the Juvenile Division of the Monroe County Circuit Court. At this hearing, Mr. and Mrs. Del Valle presented themselves to the court and offered to take C. P. into their home as an alternative to his being placed in detention. In the Order of Disposition dated November 22, 1995, the court withheld adjudication of delinquency and placed C. P. on community control under the supervision of the Department of Juvenile Justice. The court also stated in the Order that C. P. would be allowed to remain in the community control program as long as he abided by sixteen
conditions enumerated in the order. Condition number 16 provides that C. P. is to “[s]tay with Foster Parent, Susan DeValle.”
There is no question that the Del Valles are providing excellent care for C. P. and that he is doing well academically and socially. Nonetheless, the evidence is sufficient to prove that, because C. P. lives in their home, Mr. and Mrs. Del Valle have violated item number 9 of the Substitute Care Agreement, which provides:
We will accept children into our home for care only from the department and will make no plans for boarding other children or adults.
In its Denial Notice, the Department alleged the following as the second reason for its decision not to renew the Del Valles’s foster home license:
2. Agreement to Provide Substitute Care for Dependent Children, Item 11. The department has record of a Sheriff’s Department Internal Affairs investigation of an incident that occurred on March 23, 1995, where you interfered in a law enforcement situation involving a juvenile. You authorized your interference based on your licensure as a HRS Foster Parent. Your actions resulted in you receiving disciplinary sanctions that included a three-day suspension and three months added to your probation period as a corrections officer for Monroe County. You did not notify the department of this incident which is in violation of your agreement with the department.
You also failed to immediately notify the department of another situation involving law enforcement. At a conference on February 14, 1996, with
Ann Scurlock and Helen Samples, you and HRS discussed that incident. You stated that an allegation had been made that you spanked a child You also stated that the incident had been resolved and that the case was closed; “that it was no big deal, the Sheriff’s Office just wanted to get in my pocket.” The Sheriff’s Office has advised the department that the case is not closed, that the incident is still under review. Additionally, the Sheriff’s Office reported to HRS that there is a pending third additional Internal Affairs investigation.
Item 11 of the Agreement to Provide Substitute Care for Dependent Children provides:
We will notify the department immediately of any change in our address, employment, living arrangements, family composition, or law enforcement involvement.
At all times material to the Department’s decision not to renew the foster home license issued to Mr. and Mrs. Del Valle, Mr. Del Valle was employed as a detention officer with the Monroe County Sheriff’s Office.
At the February 7, 1995, home visit conducted by Helen Samples, which occurred not long after Mr. Del Valle began his employment with the Sheriff’s Office, Mrs. Del Valle asked Ms. Samples how the department defined “law enforcement involvement.” She asked this question because her husband would be continually “involved” with law enforcement because of his employment. Ms. Samples responded that the Department must be informed if Mr. or Mrs. Del Valle committed a crime or were arrested. 1
Sometime between 9:00 p.m. and 11:00 p.m. on March 23, 1995, a teenage boy named N. J. told several friends that he intended to steal his mother’s car, run it into a tree, and kill himself. Someone notified N. J.’s mother, and she telephoned Michael Holler, a member of the Department’s Mobile Team Guidance Clinic and a psychologist who had been counseling N. J. and his mother for two or three weeks prior to this incident.2
Mr. Holler met N. J.’s mother in the parking lot of the commercial building in Tavernier, Florida, where N. J. and a few friends were hanging out. N. J. was extremely agitated, pacing back and forth and threatening to commit suicide.
Mr. Holler was trying to get N. J. to talk to him, without much success, when Sergeant Bryant and Detective Sharpe of the Monroe County Sheriff’s Office arrived in response to a call from N. J.’s mother. Shortly thereafter, a third member of the Sheriff’s Office, Detective Koppins, arrived at the scene; he had been asked to look into the situation by Mr. Del Valle.
Mr. Del Valle and N. J. had a close relationship which had developed over several years. N. J.’s mother approved of the relationship and frequently called on Mr. Del Valle to help her deal with her son. N. J. asked a friend to call Mr. Del Valle on the night of March 23, 1995, to let him know what was going on and to ask him to come to the scene.
Detective Koppins and Detective Sharpe each spoke separately with N. J. and reported to Mr. Holler that N. J. did not want to talk to him, that N. J. did not like him, and that Mr. Del Valle was coming and would talk to him. Mr. Holler responded that the detectives were interfering with his relationship with N. J. and that he did not care if
N. J. liked him, he was just trying to do his job.
About this time, Mr. Del Valle arrived at the scene. He was very upset and agitated and began shouting as soon as he got out of his truck. He used profanity, accused the people at the scene of handling N. J. “all wrong”, and asserted that he was a foster parent and knew how to handle the situation. Sergeant Bryant took Mr. Del Valle aside and spoke with him, and Mr. Del Valle calmed down and talked quietly with Mr. Holler about N. J.’s situation. Mr. Holler’s supervisor, Dr. Matthews arrived at the scene a short time later, and the situation with N. J. was resolved.
Dr. Matthews, who is the executive director of the Department’s guidance center, called Ms. Samples the day after the incident to report that Mr. Del Valle was present at the parking lot during the incident and had behaved inappropriately.3 The only knowledge Dr. Matthews had of Mr. Del Valle’s behavior on the night in question was the description of the incident provided to him by Mr. Holler.
The day after the March 23, 1995, incident involving
N. J., Ms. Samples also received telephone calls regarding
the incident from “two Sheriff’s duty officers” whom she did not identify; Mr. Del Valle also notified her of the incident the day after it happened.
There was insufficient evidence presented by the Department to support the first allegation in paragraph 2 of its Denial Notice that Mr. and Mrs. Del Valle “did not notify the department of this [March 23, 1995] incident which is in violation of [item 11 of] your agreement with the department.” Firstly, on the day after it occurred, Mr. Del Valle, Dr. Matthews, and two employees of the Sheriff’s Office notified Ms. Samples of the incident and of Mr. Del Valle’s part in it. Secondly, no reasonable explanation was given at the hearing to support the Department’s conclusion that Mr. Del Valle’s involvement in the events of March 23, 1995, constituted “law enforcement involvement” for purposes of the reporting requirement in item 11 of the Substitute Care Agreement.4 Rather, Mr. and Mrs. Del Valle were entitled to rely on Ms. Samples’s explanation at the February 7, 1995, home visit that the duty of foster parents to report “law enforcement involvement” to the Department involved situations where the foster parents were arrested or charged with commission of a crime.
Finally, no credible evidence was presented at the
hearing to support the Department’s allegations in the Denial Notice that, as a result of his involvement in the incident of March 23, 1995, Mr. Del Valle was the subject of
an Internal Affairs Investigation by the Sheriff’s Office or that he was subject to employment-related disciplinary sanctions as a result of any such investigation.
On April 7, 1995, N. J.’s mother made a complaint against Mr. Del Valle to the Monroe County Sheriff’s Office, alleging that sometime between September and December, 1994, he had committed a battery on her son. The Department was apparently referring to the investigation of this complaint, which involved an allegation that Mr. Del Valle had spanked
N. J., when it alleged in the Denial Notice that Mr. and Mrs. Del Valle failed “to immediately notify the department of another situation involving law enforcement,” in violation of item 11 of the Substitute Care Agreement.
Immediately upon receiving the complaint from N. J.’s mother, the Sheriff’s Office initiated a criminal investigation of the allegation and an inspector with the Office of Professional Standards was assigned to the case. She took the statements of N. J. and his mother in September, 1995, and May, 1995, respectively. In a document entitled “Internal Affairs Investigation 95-010 Criminal Notification,” which was dated October 5, 1995, and delivered to Mr. Del Valle on October 10, 1995,5 Mr. Del Valle was notified that he was the subject of an investigation of a complaint that he had committed a battery on N. J., a misdemeanor under section 784.03, Florida
Statutes, and a violation of various policies and procedures of the Sheriff’s Office.
At some point during the investigation, a determination was made that the case should not be pursued as a criminal matter, and it was subsequently treated as an administrative matter involving Mr. Del Valle’s status as an employee of the Sheriff’s Office. The evidence is not clear whether, at the time Mr. Del Valle was notified of the investigation, it was being handled as a criminal matter or as an administrative matter.
The Department learned of the investigation when the Sheriff’s Office contacted the Department and requested the names of all of the foster children who had been placed in Mr. and Mrs. Del Valle’s home. The evidence is not clear as to who at the Department took this call, but Ms. Samples testified that, when asked the purpose for which the Sheriff’s Office needed the names, the Sheriff’s Office told the Department’s representative that an investigation was being conducted into an allegation that Mr. Del Valle had spanked a child. The Department learned of the investigation at some point before Mr. Del Valle was notified.6
On March 27, 1996, in the Management Review conducted as a result of the administrative investigation of Mr. Del Valle, it was found that the complaint of battery were not sustained by the evidence but that charges of perjury
arising out of statements Mr. Del Valle made in interviews conducted January 5 and 19, 1996, were sustained. The recommended discipline was the withdrawal of Mr. Del Valle’s appointment as an employee of the Sheriff’s Office. His employment was terminated in early April, 1996.
The evidence is not sufficient to support the Department’s position that Mr. and Mrs. Del Valle breached item 11 of the Substitute Care Agreement by failing to report the Sheriff’s Office’s criminal and administrative investigation of the “spanking” allegation. Firstly, the weight of the credible evidence establishes that the Department knew of the criminal investigation of the battery complaint before Mr. and Mrs. Del Valle knew of it. The weight of the credible evidence also establishes that Mr. and Mrs. Del Valle learned that the Department had previously been informed of the investigation at or shortly before the time Mr. Del Valle received the Criminal Notification. Therefore, it would be reasonable for Mr. and Mrs. Del Valle to see no need to notify the Department of something it already knew.
In addition, even if the Department had not been aware
of the investigation at the time Mr. Del Valle received the Criminal Notification, Mr. and Mrs. Del Valle were entitled to rely on Ms. Samples’s representation at the February 7, 1995, home visit that “law enforcement involvement” constituted arrest or commission of a crime. Since the
Criminal Notification advised Mr. Del Valle that an investigation had been initiated into the complaint that he had committed a crime, the Del Valles could reasonably assume that they were not required to notify the Department until such time as Mr. Del Valle was arrested or charged with having committed the battery.
The Department also alleged in the Denial Notice that, even though Mr. Del Valle had represented to the Department in February, 1996, that the “incident had been resolved and that the case was closed,”
The Sheriff’s Office has advised the department that the case is not closed, that the incident is still under review. Additionally, the Sheriff’s Office reported to HRS that there is a pending third additional Internal Affairs investigation.
The Department was apparently referring to the administrative investigation of the battery allegation after the determination was made not to pursue the complaint as a criminal matter and to the administrative investigation of charges that Mr. Del Valle had committed perjury in the statements he gave to the internal affairs investigator on January 5 and 19, 1996. Since both of these investigations related solely to Mr. Del Valle’s employment by the Sheriff’s Office, he was not obligated under any circumstance to notify the Department of these investigations as “law enforcement involvement.”
Although not alleged in the Denial Notice, Department
witnesses asserted at the hearing that Mr. and Mrs. Del Valle were required to report the administrative investigations pursuant to item 11 of the Substitute Care Agreement as a “change in . . . employment” because of the possibility that Mr. Del Valle could be suspended or terminated from his employment. Even had this been alleged in the Denial Notice as a ground upon which the decision to deny the license renewal was based, the language of the agreement is unambiguous and requires only that a change in employment be reported. Since the investigations were not such a change, Mr. and Mrs. Del Valle were under no obligation to report them.
In its Denial Notice, the Department stated the following as the third basis for its decision to refuse to renew the Del Valle’s foster home license:
3. At the conference on February 14, 1995, your letter of October 15, 1995, regarding the KISS Christmas project was discussed. The letter stated that, “at this point we do not want to deal with most members of HRS any more than we have to.” You stated the reason for the statement was that you felt HRS should have advised you of the spanking allegation. As was discussed, since the allegation did not involve a HRS child, HRS was not in a position to share information with you. Also HRS was bound by the rules of confidentiality governing the Sheriff’s Department’s Internal Affairs Division. Your sentiment does not reflect a willingness to work in partnership with the department which could compromise the care of dependent children placed in your home.
“KISS” [Kids in Special Situations] is a non-profit organization started by Mr. and Mrs. Del Valle; the Christmas project referred to in the Denial Notice is the annual project in which KISS provides Christmas gifts to foster children and underprivileged children in Monroe County. It had been the practice of the Department’s local office to assist Mr. and Mrs. Del Valle in the Christmas project by distributing letters to foster parents and collecting information from the foster parents regarding the children so Mr. and Mrs. Del Valle could purchase appropriate Christmas presents for each child.
Mrs. Del Valle’s letter of October 15, 1995, was directed to Ms. Gibson, an employee of the Department, and requested her help in gathering the information necessary to purchase appropriate presents for the children and in collecting the children’s Christmas lists. In the letter, Mrs. Del Valle stated:
I am not in a position this year to chase down these lists through your various offices and to be perfectly honest at this point we do not want to deal with most members of HRS any more than we have to. Just in case you are not aware there have been accusations floating about for 5-6 months of Carlos being unjustly accused of spanking a child and no one saw fit to inform us of these accusations.
This statement is the only evidence presented by the Department to support its determination that Mr. and Mrs. Del Valle were not willing to work in partnership with the
Department to insure that adequate care would be provided to any children who were placed in the Del Valle home. Given the context in which the statement was made and the lack of any evidence tending to demonstrate that the Del Valles had ever refused to cooperate with the Department when providing care for a foster child, the evidence is insufficient to establish that the Del Valles were not willing to work in partnership with the Department as foster parents.
The evidence presented is sufficient to establish the allegations in the Denial Notice that the Del Valles breached item 9 of the Substitute Care Agreement by taking
C. P. into their home. The evidence presented is not, however, sufficient to establish the remaining allegations in the Denial Notice.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to section 120.57(1), Florida Statutes (Supp. 1996).
41 Section 409.175(5)(i), Florida Statutes (1995) provides:
A license issued for the operation of a family foster home or agency, unless sooner suspended, revoked, or voluntarily returned, will expire automatically 1 year from the date of issuance. Ninety days prior to the expiration date, an application for renewal shall be submitted to the department by a licensee who wishes to have the license renewed. A license shall be renewed upon the filing of an application on forms furnished by the department if the applicant has first
met the requirements established under this section and the rules promulgated hereunder.
Since Mr. and Mrs. Del Valle are applicants for license renewal pursuant to section 409.175(5)(i), they have the burden of proving entitlement to a foster home license for the year commencing March, 1996, by a preponderance of the evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932, 934 (Fla. 1996), approving in relevant part 647 So. 2d 245 (Fla. 1st DCA 1994). However, in order to deny their application for license renewal, the Department must come forward and prove by a preponderance of the evidence the grounds for denial alleged in the Notice of Intent to Deny Foster Home License Renewal. Id.; Osborne Stern, 647 so. 2d at 248.
Section 409.175(8)(b) provides that the Department may
deny, suspend, or revoke a foster home license if it finds “[a] violation of the provisions of this section or of licensing rules promulgated pursuant to this section.”
Based on the facts as found herein, the Department has met its burden of proving by a preponderance of the evidence that Mr. and Mrs. Del Valle breached item 9 of the Substitute Care Agreement and violated the rules of the Department by caring for a child in their home who was not placed there by the Department and who lived in the home without the Department’s approval. In addition to item
number 9 of the Substitute Care Agreement, which is quoted above in paragraph 10, rule 10M-6.024(4)(d), Florida Administrative Code (rev. Sept. 1992), provides that “[t]he substitute parents may not accept children without the approval of the Department.”
As of February 7, 1995, the Del Valles were aware from their discussion with Ms. Samples that C. P. could not remain in their home and that his presence violated the Substitute Care Agreement they signed on that day. Although
C. P. left the Del Valle home in February, 1995, Mr. and Mrs. Del Valle took him back into their home in September, 1995, and then presented themselves to the court in November, 1995, as persons willing to care for C. P. The resulting court order placed C. P. in their home as a condition of his remaining in the community control program, and he resided there at the time of the hearing.
Even though the Del Valles are correct that the court order supersedes an order of the Department and that the Department may not direct them to remove C. P. from their home, the Department does have the authority to refuse to renew their foster home license because C. P.’s presence constitutes a breach of their agreement with the Department and a violation of the Department’s rules.
In the Denial Notice, item 11 of the Substitute Care Agreement, which is quoted above in paragraph 13, is also cited as having been breached when Mr. and Mrs. Del Valle
took C. P. into their home. Because the Denial Notice did not, however, include any factual allegations that Mr. and Mrs. Del Valle failed to notify the Department of C. P.’s presence in their home, the license renewal cannot be denied on this ground. See section 120.60(2), Florida Statutes (1995)(“Each agency, upon issuing or denying a license, shall state with particularity the grounds or basis for the issuance or denial of the license, except when issuance is a ministerial act.”); Cottrill v. Department of Insurance, 21 Fla. L. Weekly D2630 (Fla. 1st DCA Dec. 12, 1996).
Based on the facts as found herein, the Department has failed to meet its burden of proving by a preponderance of the evidence that Mr. and Mrs. Del Valle breached item 11 of the Substitute Care Agreement or violated the rules of the Department by failing to report as “law enforcement involvement” the incidents and investigations specified in paragraph 2 of the Denial Notice. In addition to being required by the Substitute Care Agreement to report such information, rule 10M-6.024(4)(g) provides that “[t]he substitute parents must notify the department regarding changes that affect the life and circumstances of the shelter or foster family”; more specifically, rule 10M- 6.130(5)(l), Florida Administrative Code (rev. Sept. 1992),7 requires that foster parents “[r]eport to the department . . . any family member’s involvement with law enforcement.”
The evidence is not sufficient to support the reasonableness of the Department’s interpretation of “law enforcement involvement” to encompass Mr. Del Valle’s encounter on March 23, 1995, with members of the Monroe County Sheriff’s Office. Likewise, the evidence is not sufficient to support the Department’s contention that Mr. Del Valle was obligated to report the criminal investigation into the spanking allegation or the fact that an administrative investigation was conducted after the criminal investigation was closed. When the Del Valles were notified of the criminal investigation, they were aware that the Department already knew of the investigation. The administrative investigation undertaken to determine whether Mr. Del Valle should be disciplined by his employer cannot reasonably be considered “law enforcement involvement” simply because the employer was the Sheriff’s Office. Additionally, the evidence was not sufficient to support the reasonableness of the Department’s interpretation of “change in employment” to include investigations that could potentially result in a suspension or termination.
Finally, the Department has not met its burden of
proving by a preponderance of the evidence that Mr. and Mrs. Del Valle have demonstrated an unwillingness “to work in partnership with the department which could compromise the care of dependent children placed in your home.” The evidence presented by the Department consists of a statement
Mrs. Del Valle included in a letter to an employee of the Department requesting the Department’s cooperation in working with a private charity run by the Del Valles. The Department presented no evidence that the Del Valles had refused to cooperate with the Department as foster parents to insure that any child placed in their home pursuant to their foster home license received appropriate care.
During the hearing, the Department’s witnesses testified that the incidents related in the Denial Notice caused them concern because they reflected very poor judgment on the part of Mr. and Mrs. Del Valle, and these witnesses called into question Mr. Del Valle’s truthfulness. Although the facts underlying these conclusions were alleged in the Notice, poor judgment and untruthfulness were not identified as grounds for the Department’s refusal to renew the Del Valle’s foster home license.
The Del Valles need address only those violations alleged in the Notice of Intent to Deny Foster Home License Renewal. See section 120.60(2); cf. Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987)(disciplinary action may be taken against a licensee based only upon the offenses specifically alleged in the administrative complaint); Wray v. Department of Professional Regulation, Board of Medical Examiners, 435 So. 2d 312 (Fla. 1st DCA 1983). Had the Department included poor judgment and untruthfulness among the offenses alleged in the Notice, the
Del Valles would have been on notice of the charges against them and would have had the opportunity to present witnesses to their good judgment and truthfulness. The Department is, therefore, foreclosed from basing it denial of the 1996 renewal of the Del Valles’s foster home license on these grounds.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying the application of Carlos and Susan Del Valle for renewal of their foster home license for the period extending from March 1, 1996, through February 28, 1997, on the sole ground that a child was living in their home who had not been placed there by the Department and who was living in the home without the Department’s approval.
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(904) 488-9675 SUNCOM 278-9675
Fax Filing (904) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1997.
ENDNOTES
1 Ms. Samples testified that she does not recall Mrs. Del Valle asking her how the Department defined “law enforcement involvement,” nor does she recall ever telling Mrs. Del Valle that “law enforcement involvement” means an arrest. Mrs. Del Valle distinctly recalls asking Ms. Sample the question at the February 7, 1995, home visit, and she distinctly recalls Ms. Sample’s response. Furthermore, it is reasonable that Mrs. Del Valle would ask this question prior to signing the agreement in light of her husband’s recent employment as a detention officer. Accordingly, Mrs. Del Valle’s testimony on this point is the more credible and is accepted
2 Holler had been assigned to counsel N. J. as part of a juvenile pre-detention intervention program. There was no proof offered that N. J. was a dependent child or in any respect under the supervision of the Department.
3 Earlier that week, Dr. Matthews and Ms. Samples had attended a forum in which the results of a Palm Beach Grand Jury investigation into the foster care system were reviewed. According to Ms. Samples, one of the points made in the forum was that the Department should be made aware of foster parents’ “non-arrest contact” with law enforcement. Ms. Samples believes that Dr. Matthews reported the incident because he had learned at the forum that the Department has a need to know such information.
4 Ms. Samples testified that the background check the
Department performs to determine “law enforcement involvement” of new applicants for foster home licensure focuses only on whether the prospective foster parents had been arrested or were the subject of any arrest warrant. She further testified that the term “law enforcement involvement” as used in paragraph 11 of the Substitute Care Agreement applies to any involvement, not just warrants and arrests. She could not be more precise, and she defined the term “law enforcement involvement” as it is used in the Substitute Care Agreement as follows: “Law enforcement involvement as far as that form [the Agreement] is [sic] law enforcement involvement.” (Tr. at 114).
5 The document bears the date of May 30, 1995, but it was established through testimony that this was a typographical error.
6 Ms. Samples testified that she could not recall specifically when the Department was notified of the investigation. She recalled only that it was after the incident that occurred on March 23, 1995; she could not, however, recall whether it was a month after this incident or several months after. In a letter dated October 15, 1995, to Karen Gibson, an employee of the Department, Mrs. Del Valle expressed her displeasure with the Department, stating: “Just in case you are not aware there have been accusations floating about for 5-6 months of Carlos being unjustly accused of spanking a child and no one saw fit to inform us of these accusations.” The Department responded to this assertion in its Denial Notice by justifying its failure to notify the Del Valles of the investigation. The explanation given in the Denial Notice, the testimony of Ms. Samples and of Mr. and Mrs. Del Valle, the documentary evidence presented, and the inferences that may reasonably be drawn from the evidence support the finding that the Department knew about the criminal investigation before Mr. and Mrs. Del Valle.
7 This rule was repealed effective March 14, 1995, seven days after the date on the Denial Notice.
William F. Stacey, Esquire Department of Health and
Rehabilitative Services
401 Northwest Second Avenue Miami, Florida 33128
Carlos & Susan Del Valle
154 Sebring Drive Tavernier, Florida 32070
Richard A. Doran, General Counsel Building 2, Room 204
1317 Winewood Boulevard
Tallahassee, Florida 32399-0700
Gregory D. Venz, Agency Clerk Building 2, Room 204
1317 Winewood Boulevard
Tallahassee, Florida 32399-0700
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Jul. 08, 1997 | Notice of Appeal received. (filed by: Carlos Del Valle) |
| Jun. 12, 1997 | Final Order received. |
| Feb. 12, 1997 | Letter to PHM from C & S Del Valle Re: Exceptions received. |
| Feb. 04, 1997 | Recommended Order sent out. CASE CLOSED. Hearing held 06/20/96. |
| Jan. 15, 1997 | (DHRS) Pages 99 and 100 of Transcript (filed via facsimile) received. |
| Nov. 19, 1996 | Petitioner`s Proposed Recommended Order received. |
| Nov. 14, 1996 | Petitioner`s Proposed Recommended Order (filed via facsimile) received. |
| Oct. 17, 1996 | (2 Volumes) Transcript received. |
| Oct. 02, 1996 | Letter to Parties of Record from P. Malono (re: status of filing of transcript) sent out. |
| Jul. 29, 1996 | CC: Letter to Carlos & Susan Del Valle from William Stacey (RE: enclosing sample copy of PRO, AC copy of the interviews of Carlos and Nelson Johnson, tagged) received. |
| Jun. 28, 1996 | Post-Hearing Order sent out. |
| Jun. 20, 1996 | CASE STATUS: Hearing Held. |
| May 03, 1996 | Order of Prehearing Instructions sent out. |
| May 03, 1996 | Notice of Hearing sent out. (Hearing set for 6/20/96; 10:00am; Tavernier) |
| Apr. 30, 1996 | Agreed Response to Order received. |
| Apr. 26, 1996 | Agreed Response to Order received. |
| Apr. 25, 1996 | Letter to Hearing Officer from C. & S. Delvalle Re: Response to Initial Order received. |
| Apr. 12, 1996 | Initial Order issued. |
| Apr. 04, 1996 | Notice; Request for Administrative Hearing, Letter Form; Agency Action letter received. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 10, 1997 | Agency Final Order | |
| Feb. 04, 1997 | Recommended Order | Denial of foster home license renewal was appropriate because foster parents took child into home who was not placed there or approved by Department of Health and Rehabilitative Services (DHRS). |
DEPARTMENT OF CHILDREN AND FAMILIES vs TEDDY AND KATHLEEN ARIAS, 96-001697 (1996)
HELENA MCINTYRE vs DEPARTMENT OF CHILDREN AND FAMILY SERVICES, 96-001697 (1996)
HELENA MCINTYRE vs DEPARTMENT OF CHILDREN AND FAMILY SERVICES, 96-001697 (1996)
WILLIAM T. AND MARY L. SCARFF vs DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 96-001697 (1996)
DEPARTMENT OF CHILDREN AND FAMILY SERVICES vs WENDY PALMER AND DAVID PALMER, 96-001697 (1996)
